IN THE CASE OF:
BOARD DATE: 18 February 2014
DOCKET NUMBER: AR20130009954
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests his reason for separation be changed from drug abuse rehabilitation failure to family hardship.
2. The applicant states at the time of separation, he was able to complete his tour of duty but due to his mother being sick, his assistance was needed at home.
3. The applicant provides no supporting documentation.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 7 January 1986, completed training, and was awarded the military occupational specialty 63D (Self-Propelled Field Artillery Systems Mechanic). Following training he was assigned to duty in Germany.
3. On 29 December 1986, the military police charged the applicant for illegal drug possession.
4. On 30 December 1987, the applicant was referred to the Clay Counseling Center with enrollment in a Track 1 drug abuse program. He was released from the Track 1 program on 2 February 1987.
5. On 8 April 1987 the Clay Counseling Center declared the applicant a drug rehabilitation failure following a positive drug screening. Discharge was recommended to be under chapter 14 (misconduct) and in accordance with the Army abuse policy.
6. The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on:
* 20 February 1987, for possession of marijuana
* 7 May 1987, for wrongful use of marijuana/hashish
7. On 5 June 1987, following the applicant's second drug abuse charge, his command initiated separation action in accordance with regulations requiring separation following a second drug abuse finding.
8. The applicant received a general discharge on 9 September 1987 under Army Regulation 635-200, chapter 9 for drug abuse rehabilitation failure. He had 1 year, 8 months, and 3 days of creditable service.
9. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse rehabilitation failure. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.
DISCUSSION AND CONCLUSIONS:
1. The applicant's administrative separation was accomplished in compliance with applicable regulations. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
2. The applicant's contention that he was able to complete his tour of duty is without merit. By regulation with the second drug violation the applicant's command had no option but to process him for discharge for drug abuse.
3. The applicant has not provided and the record does not contain any evidence warranting a change of the applicant's reason for discharge.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ____X____ ____X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_______ _ _X______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case
ABCMR Record of Proceedings (cont) AR20130009954
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ABCMR Record of Proceedings (cont) AR20130009954
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